Gay-Marriage Decision Sets Up Next Fight

An appeals court ruled Thursday that the heart of a law that denies a host of federal benefits to gay married couples is unconstitutional. Ashby Jones on Lunch Break has details and looks at the implications of today's ruling. Photo: AP.

By

Jess Bravin and

Geoffrey A. Fowler

Updated May 31, 2012 6:40 p.m. ET

A federal appeals court in Boston ruled the 1996 Defense of Marriage Act unconstitutional Thursday, setting up a likely Supreme Court battle on gay marriage sometime after the presidential election.

Read the Appeals Court Opinion

The decision is the second federal appeals ruling this year to side with gay-marriage proponents and comes weeks after President Barack Obama became the first president to say he believes same-sex couples should be able to wed. In February, a court in San Francisco struck down a California voter initiative that barred gay marriage.

Both sides expect the Supreme Court to eventually decide the two cases. Less clear is whether the court would reach a decision on whether gays and lesbians enjoy a constitutional right to marry. The two appellate-court decisions stopped short of making that judgment, ruling in favor of gay-marriage advocates on narrower grounds.

The Defense of Marriage Act, passed by bipartisan congressional majorities and signed by President Bill Clinton, says the federal government would only recognize marriages between a man and a woman. It prevents same-sex couples who married under state laws from receiving federal benefits such Social Security survivor payments and burial privileges in veterans' cemeteries.

Legal Patchwork

In Thursday's opinion, a three-judge panel in the First Circuit Court of Appeals found that the law couldn't stand. Writing for the court, Judge Michael Boudin, an appointee of President George H.W. Bush, observed that Supreme Court precedents limit government's power to take action against "historically disadvantaged or unpopular" groups, including gays and lesbians. The 1996 law imposes "serious adverse consequences" on them, he wrote.

Justifications offered for the law—"defending and nurturing the institution of traditional, heterosexual marriage" and "traditional notions of morality," among others—were insufficient to justify such discriminatory treatment, Judge Boudin said.

Six states plus the District of Columbia currently authorize same-sex marriages, and more than 100,000 same-sex couples have been married. Thirty-nine states have passed laws limiting marriage to a man and a woman.

The California case involves Proposition 8, passed in 2008, which amended the state constitution to nullify an earlier state Supreme Court ruling finding that the state constitution required recognition of same-sex marriages. The Ninth Circuit Court of Appeals struck down Prop 8, finding it violated the U.S. Constitution by withdrawing from gays and lesbians a right that they previously enjoyed. The full Ninth Circuit is weighing a request from Proposition 8's backers to reconsider the February ruling.

The legal issues in the two cases overlap in some respects and differ in others. Judges in both cases grounded their opinions on Supreme Court precedents striking down laws that targeted various minorities for unfair treatment.

Both appellate courts relied heavily on a 1996 U.S. Supreme Court decision, Romer v. Evans, about the state of Colorado's attempt to block local ordinances protecting gays from discrimination. The high court said the state effort was unconstitutional, with Justice Anthony Kennedy writing for the majority that the initiative apparently was "born of animosity toward the class of persons affected."

Headed for the High Court

Key dates in the two main gay-marriage cases in federal court:

California Proposition 8, state initiative barring gay marriage

May 15, 2008: California Supreme Court recognizes right to gay marriage under state constitution

Defense of Marriage Act, barring federal recognition of same-sex marriages authorized by states

Sept. 21, 1996: President Bill Clinton signs law

July 8, 2010: Federal district judge Joseph Tauro in Boston strikes down law

Feb. 23, 2011: Obama Justice Department says it will no longer defend the law in federal court.

May 31, 2012: First Circuit Court of Appeals affirms Judge Tauro and strikes down law, says Supreme Court will likely have to resolve the case.

—Source: WSJ Reporting

But the two cases involve different kinds of laws: One is a state constitutional provision and the other is a federal law.

Theodore Boutros, part of the legal team challenging Proposition 8, suggested that the Supreme Court might take both cases at the same time.

"It might even consolidate them or hear them as a package," he said. "Looking at these issues with different vantage points, different aspects of the same unconstitutional flaw is very helpful to our case."

Gay-marriage opponents also are hoping to achieve victory at the Supreme Court after defeats in lower courts. "We have always been clear we expect this matter ultimately to be decided by the Supreme Court, and that has not changed," said Paul Clement, a former solicitor general who was hired by the Republican-led House to argue on behalf of the Defense of Marriage Act after the Obama administration in February 2011 concluded that the law was unconstitutional.

"The federal government had the right to step in against polygamy at one time in our nation's history," said Dale Schowengerdt of the Alliance Defense Fund, which opposes gay marriage, "and it has the right to step in against this attempt at marriage redefinition as well."

Mary Bonauto of Gay & Lesbian Advocates & Defenders, which represented plaintiffs at the First Circuit, said she believed the Supreme Court would uphold the ruling but not venture into deciding whether there is a federal right to same-sex marriage. "I do think it will eventually get there. This is not that case," she said.

The timing of any Supreme Court review isn't clear, but if the court followed its usual pace it could hear the case by spring 2013 and render a decision by June 2013.

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